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It does not say, “Save where they believe that national security considerations apply.” That simply makes my point; if this material is necessary for the finders of fact—the jury—it will go to the finders of fact. The amendment provides absolutely no protection for national security, notwithstanding the fact that the outside pressure groups have accepted that there should be, as has Baroness Miller, in this kind of throwaway line.
Mr. Grieve: I hope that I am not intervening at the wrong moment, but the Secretary of State may have noticed from the amendments that have been tabled that there appears to be an acceptance by those who have tabled amendments in lieu that the principle of the problem that he identifies about the use of intercept evidence may well be widely accepted across the House. The question then arises: what safeguards can the Government offer that the inquiry process will not be used in a way that would undermine the coronial process and be seen to be unfair? On that, may I simply remind him that in Committee, Lord Kingsland—before he died—provided a good steer as to the sort of protections that ought to be in the inquiry process to ensure that it would command confidence? The Government have not adopted all of those. The Secretary of State may comment about this in a moment, but I should say that they might go to the heart of being able to resolve this issue. At the moment, the problem we face is that the situation remains unsatisfactory and that confidence in the inquiry process as it appears in the Bill is not sufficient.
Mr. Straw: I have been up hill and down dale on this, as I know others have. I thought that clause 12 was a way of resolving this, because it would have placed in the hands of the senior judge the decision as to whether or not to proceed with a certain investigation, they would then have run the investigation and it would have been within the coronial system. That was parodied as a secret inquest, and we have now gone down the route of an inquiry under the Inquiries Act 2005. We have sought to ensure that only a senior judge can sit on this—other clear criteria are set down.
This matter has gone round and round for two years now and I am certainly ready to promise the House—Members will have to take it on trust, but there is no reason not to trust me—that the inquiry will be used only in exceptional circumstances. The facts speak for themselves—there is only one extant case in which it is likely to be used, and that is a very rare case. Secondly, I will ensure that my right hon. Friend the Home Secretary and I bring forward a protocol to set out the circumstances in which such an inquiry would take place. They would be very limited, too.
5.30 pm
It might be useful to deal with amendment (a), tabled by the hon. and learned Member for Beaconsfield (Mr. Grieve), to Lords amendment 128. It suggests that any appointment by the Lord Chancellor of a senior judge should be made with that judge’s consent. First, there could and would be no appointment without the consent of the Lord Chief Justice. It is important that I should say that, and it goes without saying that I have to ask the Lord Chief Justice from time to time to nominate a judge; if he or she were to decide that no judge were to be nominated that would be the end of the matter. That
power is quite important. The Lord Chief Justice can speak for himself, but I suggest that he would wish to be satisfied about the conditions under which any inquiry were to take place and about what the level of judicial discretion would be for such an inquiry before he made an appointment.
Mr. Straw: I shall just finish my comments on Lords amendment 128, if I may. I shall then give way to my hon. and learned Friend and, afterwards, I shall finish my speech, as time is limited.
The hon. and learned Member for Beaconsfield suggests that the judge should consent to the Lord Chancellor’s request, and I understand exactly why. If it is about agreeing to the appointment qua appointment, I can say that, with respect, that ought to be done by the Lord Chief Justice. Perhaps we should have put that in the Bill. We have not, but I give an absolute undertaking on that understanding and anyway, in practice, the Lord Chief Justice has a veto, quite properly, over whether somebody is or is not appointed. Of course he does. He might just say, “I’m sorry, there isn’t anybody available,” or, “I’m sorry, I will not appoint anybody because this is not an appropriate article 2-compliant tribunal and the learned judge will be compromised.”
As the hon. and learned Gentleman would expect, I have looked carefully into whether I could accept his amendment. At first blush, it appears rather similar to the scheme that was in clause 11 of blessed memory, on page 7 of the Bill as it left the Commons, which spelled out that the judge would have to make a decision, based on certain criteria, about whether the application from the Secretary of State was to be accepted.
To some extent, my objection is technical but I promise the hon. and learned Gentleman that it is serious. We are at a late stage in the proceedings on the Bill, and although I had a lovely scheme in mind, there were no takers for it, so if the only proviso in the Bill is that the consent of the judge is required, he or she must work out how to exercise that consent. He or she cannot just say, “Yes, I’m available. I’ll do it,” but will have to say, “I will have to hold a hearing.”
Another matter to consider is which criteria should be used. Clear criteria were set down in my proposals, but now there is only the hon. and learned Gentleman’s amendment to consider. He could simply have pulled out the old clause 11(6) and plonked those criteria in. It is a bit late to do so, although I am not trying to make a point about that. Just so the hon. and learned Gentleman knows, the alternative I considered was whether there was any provision for the court to make rules, but we are not talking about a criminal case, so the criminal rules committee cannot make such rules. There does not appear to be any appropriate rule-making power.
I hope the hon. and learned Gentleman will accept that the point about consent will be dealt with by the clear undertakings I have given in respect of the Lord Chief Justice, but that for practical reasons it is not really appropriate to accept the amendment.
Mr. Marshall-Andrews:
Does my right hon. Friend not understand that it is a question of scale? In any jury system there are always problems with public interest immunity—there always have been—and we get round
them by a mixture of evidential routes that has served us extremely well. We now have a problem in one case—just one case in five years—and to rectify that evidential problem the Government propose to hand a massive new power to the Executive. The disproportionate remedy in the circumstances is obvious to everybody. I know there is judicial oversight, but my right hon. Friend will forgive me for saying that he adulates the higher judiciary only when they are being used as a mechanism to withdraw jury trial. Otherwise, he is rather more critical of them and on occasion has described them both as unelected and unregulated and in various other ways. To say that there is a higher judicial role is not an adequate response. Does my right hon. Friend not understand that that is what concerns most of us in the House?
Mr. Straw: My hon. and learned Friend is an infinitely more experienced criminal practitioner than ever I was—I say that seriously, without condescension. However, there is a very big difference. In a criminal case, the trial judge can say, “I am not going to proceed, because it would be unjust”, or the prosecution can say, “We are about to have crucial evidence that is sensitive and compromised. We will withdraw the prosecution”, and sometimes does so, because there is no option. But with great respect, there will not be a massive new power in the hands of the state; it would be used extremely sparingly.
I feel extremely frustrated, because my scheme was to give the decision to a senior High Court judge, but that did not find favour. We tried plan A. That did not work. We tried plan B and that did not work, so now we have plan C. To those who say they do not like the idea of non-jury inquests, I say that I do not like the idea either, but I am trying to square an extraordinarily difficult circle, and I have not yet found a way of doing so except by a route similar to the proposal.
Mark Durkan (Foyle) (SDLP): The Lord Chancellor has told us that he is trying to square an extraordinarily difficult circle. He has indicated that he has a problem and the Opposition spokesperson has indicated that he acknowledges that the Lord Chancellor has a problem, and we have heard about the problems of the intelligence services. Does the Lord Chancellor accept that it is important that the House focuses on the real people who may have a problem, who could be a grieving, and potentially aggrieved, family in the future? It could be a perturbed public, who are concerned and suspicious about the circumstances of a death. Is he not at least a little bit uncomfortable that on a day when the Prime Minister is off in Berlin, celebrating the end of the Berlin wall, and the end of control and secrecy and all it represented, the Government are trying to put such measures through the House?
Mr. Straw:
None of us is comfortable about departing in any case from jury inquests. I hope my hon. Friend will concede that none of us would be going down that route unless we felt that it was absolutely necessary, but as I said, Inquest, Justice and other groups accept that there is material that should be kept from an inquest jury. It may be absolutely central to the case, and the investigation still has to proceed. Baroness Miller accepts
that material should be kept back. She referred to the Chilcot criteria, although the withholding would be rather more extensive than she anticipated. In any event, we cannot do it within the scope of the Bill.
The issue is whether we do or do not come up with a scheme that allows an article 2-compliant investigation to take place, where the finder of fact has access to all the relevant facts. The alternative that has been put to the House is a jury inquest from which material would be withheld, but, I suggest, on unsatisfactory grounds. That is not a way of reaching at the truth for the benefit of the parties—above all the aggrieved relatives. That is our overwhelming concern.
In conclusion, I sense from the sombre atmosphere in the House that everybody is addressing themselves to the issue. Even at this late stage, I invite the House to acknowledge that the issues that I have tried to deal with are extremely difficult. They will, I repeat, arise only in rare exceptions. It is in the interest of all of us that those exceptions are kept to a minimum, but occasionally they will arise. The scheme that we propose is a way of achieving justice, not least for the aggrieved parties.
Mr. Grieve: I shall be brief. I repeat what I said: I acknowledge that the Government have a problem. In the other place, amendments were tabled by Baroness Miller. As the Secretary of State knows from my earlier remarks, and as is implicit in the amendments tabled in lieu, there is an acknowledgement that to allow intercept evidence would be very difficult at this stage.
My party is on the record on countless occasions as wishing to see intercept evidence available in criminal trials and at inquests. That is desirable and it is a shift that needs to take place. I regret that the movement on this is so slow. We subscribed to the Chilcot process so that it could be reviewed, and the Chilcot process is not yet complete. Therefore I acknowledge that to ride a coach and horses through that would be unsatisfactory, even though it is an end that I would wish to see, properly arrived at.
The question then is how we solve the conundrum. The Secretary of State is right that the Bill has been up hill and down dale. He wanted to have a provision for secret inquests that could hear evidence secretly. He received universal opprobrium for that, partly because it debased the entire coronial system. As he will recollect, when the matter came to be discussed on Report, I suggested to him that it would be better if we called a spade a spade, and if we could not have an inquest in proper form, it would be better to look at the inquiry route, which already existed, as an alternative. At least the Secretary of State or some other Minister would have to explain to the House why an inquest was impossible, answer the hostile questioning of the House and enable Members to express a view, and then and only then, with probably a great deal of public debate surrounding the matter, would an inquiry go ahead.
It is also true, as I hope I made clear on Report, that when the matter went to the Lords in Committee, Lord Kingsland argued that if an inquiry route were to be pursued where normally an inquest would take place, there were a great many flaws in the inquiry procedure. He tried to rectify that. It was virtually the last speech he ever made. The Government accepted some of what he suggested, including the need for a High Court
judge, and some other safeguards concerning the scope of the inquiry. What the Government did not do was to listen to Lord Kingsland’s calls that that had to be a judicial process, not an administrative process.
The Secretary of State highlighted my amendment (a) to amendment 128, and I am the first to accept that it is probably desperately inadequate. The procedures that we have in the House are now so barmy—there is no other way to describe them—that I had to draft the amendment even before the Bill had come back from the Lords. All I could do, with the help of the Clerk in charge of the legislation, and with the anxiety that as an amendment in lieu, anything more would probably not be accepted, was to find some way of bringing back to the House the issue of judicial control. Imperfect though the amendment may be, its purpose was simply to give the House the opportunity to say, “Perhaps if we have to have an inquiry, there should be a judicial lock on it.” Interestingly, that is exactly what the Secretary of State hinted he was minded to grant in the original draft of clause 11(6). I am a little mystified about why he did not pursue the road that Lord Kingsland identified for him, because, if the Secretary of State had, we would not have ended up with the situation that we had in the House of Lords on Report, when everything went in all directions. I hope that I am not being unfair, but the anxiety that their lordships clearly manifested finally expressed itself in allowing intercept evidence.
5.45 pm
Mr. Straw: I did not intend any criticism of the hon. and learned Gentleman’s drafting of his amendment in lieu. As he knows, I spent 18 years in opposition, 17 of them as an Opposition spokesman for one thing or another, and I used to have to draft such amendments. I hope, however, that I have given him a lot of comfort—albeit not in the Bill—about the practice, which will be inevitable, in circumstances where there is an appointment. Of course I accept that the noble and much lamented Lord Kingsland was searching constructively for a solution, and we were trying to find one, but it is also fair to say that some who have objected at each stage to what we have tried to do, not including the hon. and learned Gentleman at all, will object in any circumstances to there not being an inquest jury in full possession of the facts. That is the central difficulty with which we are trying to grapple.
Mr. Grieve: I appreciate the Secretary of State’s comments, but I shall bring my remarks to a close.
It seems to me that the amendment in lieu tabled by the hon. Member for Hendon (Mr. Dismore), which the Secretary of State has not signed, but which would leave out paragraphs (3) and (8) from schedule 1, has this great merit: it would ensure that the Bill went back to the other place, where the issues that I have just raised could be addressed. If we go along the route that the Secretary of State has advocated, and we do not support the amendment, the Bill will effectively go on to the statute book in its present form. That would be unsatisfactory, so with that in mind I intend to support the amendment in the name of that hon. Gentleman and those who have signed it.
We may be at a late stage, but just because we happen to be discussing it on the Monday before Parliament is due to prorogue on the Thursday, we should not suddenly
suspend our critical faculties. We are considering Lords amendments, and, if we do not wish the issue to be dropped completely, the proper course of action will be to ensure that it stays in play, so that when the Bill goes back to the other place the Government can take on board what has been said here and, I dare say, what will be said there and come up with a constructive solution that respects its concerns as well as those of Members from all parts of this House.
Mr. Dismore: I shall speak to the amendments in lieu that are in my name and those of other Members who have signed them on a cross-party basis. I, like the hon. and learned Member for Beaconsfield (Mr. Grieve), accept that there is a problem with intercept evidence, and it needs a comprehensive solution. In trying to table sensible amendments in lieu, I was handicapped by the procedures of the House, which meant that the only possibility was to propose the removal of paragraphs (3) and (8) from schedule 1.
On 30 April 2005, Azelle Rodney was in the rear seat of a car in Hale lane, Edgware, in my constituency. A police officer fired eight shots at the car, six of which hit Rodney, killing him. There is no evidence that Rodney was holding a gun when he was shot, although the other occupants were successfully prosecuted, firearms having been found in the vehicle. The suggestion was that it was part of a drugs operation, not, I have to say, a national security issue, and that covert surveillance was used.
The Independent Police Complaints Commission report has not been published, but it recommended no action. Four-and-a-half years on, there has been no inquest and no explanation, and Azelle Rodney’s mother, Susan Alexander, wants, needs and has a right to know what happened to her son. So do constituents, because they were made fearful by the incident having taken place in broad daylight at a busy junction. They, too, would like to know what was going on.
I was pleased when my right hon. Friend the Justice Secretary announced that the secret inquest proposals in the Bill were to be dropped, but I am disappointed that they have been replaced by secret inquiries. This debate seems to be something of a “Groundhog Day” in terms of the issues that we may have to cover. Schedule 1(3), which my amendment would remove, provides for the suspension of inquests
“on the ground that the cause of death is likely to be adequately investigated by an inquiry under the Inquiries Act 2005”.
However, there are no criteria or grounds for superseding an inquest specified in the Bill. On that basis, the proposals before us are worse than those that were withdrawn for secret inquests.
Article 2 of the European convention on human rights provides a positive obligation to provide an adequate and effective investigation when individuals are killed as a result of the use of force, particularly where the death is a result of the use of force by state agents. The person conducting the investigation must be independent of those implicated in the events, there has to be a sufficient element of public scrutiny to secure accountability in practice as well as in theory, and the investigation must involve the next of kin to the extent necessary to protect their legitimate interests.
According to the schedule, the coroner may not suspend the inquest if there is an exceptional reason for not doing so. In an intervention, I asked my right hon.
Friend whether, if the investigation was not going to be article 2 compliant, that would justify the coroner’s refusal and whether he would uphold the coroner in making that decision. I was given a rather ambivalent answer. If the procedure was going to be article 2 compliant in the first place, one would not need to use the provision—it is only the implication that something would be missing from the inquest that puts matters in the article 2 questionability arena. If the coroner considers that it is an exceptional circumstance, then presumably he should be able to refuse the request. I canvassed this issue in correspondence on behalf of the Joint Committee on Human Rights with my right hon. and learned Friend the Leader of the House, who was then Minister of State at the Department for Constitutional Affairs. She replied on 22 January 2007:
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